Let me also express special gratitude to PrawfsBlawg for a stint I did back in the fall of 2008. A single post I started about the legal aspects of black holes and particle-physics research turned into a series of five posts, and then that series of posts turned into a 35,000-word law review article, which I published a few months ago (here are links to some press about it and an update on the has-the-danger-passed question). That law review article in turn lengthened into a second law review article, which I hope to publish in the not-to-distant future. All of that work has been tremendously rewarding, and I owe it all to PrawfsBlawg for providing this very special platform.

My Principles for Great Law School Architecture

If someone said they wanted to see "a picture of [a certain] law school," it would be clear that they would be talking about seeing a picture of the campus, that is, the school's architectural embodiment.

The essence of a law school might be its students and/or faculty, but when a person sees a law school in the mind's eye, that person sees architecture. The law and the courts generally attempt to respect substance over form. That's a lofty pursuit. But architecture is an issue no law school can look past. As most Civ Pro profs admonish their students, procedure is substance. There is a similar truth about an institution's physical infrastructure: Architecture is substance.

So what should that substance be?

I am going to offer my answer to that question. First, let me offer a reality check: I have no training in architecture. My only bona fides are an enthusiastic interest in the subject, especially when it comes to law schools, and the fact that I've made a point of observing law school architecture whenever possible. I've visited 37 law school campuses so far, and I've photographed many of them. So here's what I think I've learned:

Law schools borrow from two distinct traditions: legal and academic. In many ways, a law school should feel like other academic buildings. But it should also show a particular genetic relatedness to the architecture of legal institutions, such as courts and legislatures. There are beautiful and inspiring campuses that have been crammed into tight urban spaces, and there are beautiful and inspiring campuses that sprawl among an assortment of repurposed buildings. Regardless of what form they take, however, the best law schools, architecturally speaking, seem to draw something worthy from both law and academe.

There are many principles to good architecture. I'm not qualified to list them. But I do have three important architectural principles that I think are particular to law schools.

The architecture should reflect aspirations of professionalism in the law. A student's chair in an undergraduate classroom is a place to absorb knowledge. But a student's seat in a law school classroom is a place to do work. That's why law students get a real desk instead of just a lift-up-flip-down writing surface. A law school classroom seat is also a place from which to speak and be seen. Much of what works for the layout of a legislative chamber tends to work for a law school classroom – concentric rings of desks that rise in elevation as they move further from the center. That setup is sensible because a law school is more a place for debate than it is a place for receiving answers. On the other hand, no classroom should be nearly as self-invested in pomp and circumstance as the usual legislative chamber. Humility is good. Beyond the classrooms, a law school needs a courtroom. The courtroom should unapologetically have the trappings of judicial authority – flags, a bench elevated off the floor, a seal behind the bench, and so on. There's no need for humility in the courtroom – if a law school's courtroom outshines the hearing chamber at 1 First Street, NE, then more power to it. The remainder of the law school should reflect a professional vibe as well. It's okay for the hallways to look slightly more law-firm-esque than other academic buildings.

The architecture should embrace the occupation of learning. Lockers, though alien to a courthouse, should have a prominent place in a law school. (See some great law-school locker shots here and here.) The library, ideally, should have a conspicuous interface with the rest of the law school. Whether the law school is in one building or several, there should be lots of nooks and crannies everywhere for curling up with a book. In this and other ways, a law school should aim to distinguish itself from the icy feel of a courthouse. Acoustically, the blast of white noise from an espresso-machine frother should drown out echoey clacks of heels on marble.

The architecture should compel interaction. Hallways and common areas should cause students to converge, faculty to converge, and students and faculty to converge on one another. The transit paths and lounge areas for students should join in such a way that students are made to see and engage one another. The same goes for faculty. I particularly love the faculty offices at my school, the University of North Dakota, because they are arranged around wide-open common areas that facilitate random conversations. Ideally, a law school will be designed to have a least one point where students and faculty are made to cross paths in an place that encourages loitering. This incubation of impromptu discussions should not only be reflected in the school's spatial extent, but also in its lighting and acoustics. This goal of fostering interaction is the opposite of the ideal for a courthouse, which is to isolate jurors from attorneys and to keep everyone away from the judges.

A few of the law schools that I've visited that seem to embody these principles, in varying degrees (and where I've had a good deal of time to walk around), are Seattle U., Seton Hall, the University of Washington, Stetson, Dayton, the University of Wisconsin. That's not an exclusive list, of course.

The photo above is of the James E. Rogers College of Law, University of Arizona.

It's the empathy, stupid

Empathy was back yesterday, with Republican Senators again trying to push the nominee to adopt or disavow President Obama's stated vision of judging. This time it was Senator Kyl and the following exchange:

Kyl: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?

Kagan: Senator Kyl, I don't know what was in the -- I don't want to speak for the president. I don't know what the president was speaking about specifically. I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other. . . . But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down.

I mentioned earlier that I liked the answer for how it brought the adversary system and the role of attorneys and parties into the judging mix. But what I really liked about the answer is that Kagan just defended the President's point on empathy, although no one caught it.

Remember that empathy is not synonymous with sympathy (Kyl's question either ignored or missed the difference; what happens at sentencing would be sympathy). Empathy literally means the capability of experiencing someone else's emotions and feelings; colloquially, it means being able to put yourself in the other person's shoes and to understand where she is coming from. An empathetic judge truly listens to the parties and tries to put herself in the party's shoes in hearing and trying to understand those arguments. Well, isn't that precisely what Kagan meant by "see[ing] that case from each party's eyes"?

An empathetic judge does not decide a case out of sympathy for one party or because she feels bad or sorry for that party. And no one suggests any judge does so; it is not the call for lawlessness that so many Republicans and conservatives claim. Empathy is only a way of listening to the parties and trying to understand their arguments. This might affect the outcome, of course. But that is because the parties' arguments always might affect the outcome. The point of empathy is that the judge should really listen and try to understand and not have already made up her mind.

When I heard this exchange live, it actually sounded as if Kagan was linking this silent empathy to "law." That is, the judge must listen to the parties as part of the process of figuring out what the law is and what the law requires. That listening to the parties (which inherently involves empathy) is part of "law all the way down." That connection does not come through in the transcript quite as well.

Signing off for 2010

Thanks to Dan and the others here at Prawfs for allowing me to share their space this past month. As I sign off during these confirmation hearings, which are setting a new bar for boredom (apart from Kagan's occasional jokes), I will link to this column I wrote for Fox News's web site. Fair and balanced, etc.

Vischer on the CLS case

I was very disappointed by the decision in the CLS case. (Disclosure: I submitted an amicus brief in support of CLS.) Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters. I realize (of course) that the relevant doctrine -- "limited public forum", "viewpoint neutrality", "government speech", "unconstitutional conditions", etc. -- is tangled. For me, though, the decision is most disappointing for the embrace, in the majority opinion and in the Kennedy and Stevens concurrences, of the idea that there is something worthy-of-government-procurement -- something that, we are told, weighs in favor of Hastings' policy -- about imposing dissent, or perhaps just dissonance -- on a religious association in order to teach that association's members respect for difference, the importance of dialogue and toleration, etc. I'm a broken record (that is, a bore) on this, I know, but "discrimination" on mission- and ethos-related grounds by a religious association is not, in my view, "discrimination" of the kind that the state has an interest in opposing (or even in just avoiding subsidizing).

I recommend, by the way, my Mirror of Justice colleague Rob Vischer's post on the case (here). Here's a bit:

[T]he majority noted that the law school’s (alleged) “all comers”
policy could be a reasonable expression of the school’s desire to
encourage tolerance, cooperation, and learning among students.Fair enough.But,
the majority added, to the extent that the policy “sometimes produces
discord,” the law school can reasonably include among its goals for the
policy “the development of conflict-resolution skills, toleration, and
readiness to find common ground.”The message to
CLS: “you nutty evangelicals have the opportunity to learn tolerance
and cooperation by admitting all students, even those who defy your
group’s animating beliefs; if you find that this policy creates
discord, you have the opportunity to learn conflict-resolution skills.”Obviously,
the same skill sets could be equally in play with a policy that
permitted groups to pursue their own chosen beliefs, with significantly
less fallout for associational freedom and expression.

. . .Justice Stevens, in his concurring opinion, notes that “the
policy may end up having greater consequences for religious groups . .
. inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths.” (emphasis added)Note what this phrasing communicates about the Justice’s mindset.I’ve never met a CLS member or leader who desired “to exclude students of particular faiths.”The
point, for CLS and every other religious group of which I have been a
part, is to engage in the mutual formation and expression of truths
held in common.A desire to exclude is not the point of the project, nor is the exclusion aimed at “particular faiths.”The
exclusion is a consequence – and usually a consequence that is neither
celebrated nor trumpeted – of a commitment to meaningful inclusion.

Thoughts on Day Two

Some themes and thoughts that jumped out at me from Day Two, the first substantive day, of the Kagan Hearings, where criticism of Justice Marshall gave way to important considerations of Jews eating Chinese food on Christmas.

1) Sen. Grassley is interested in law school curriculum reform. He pressed Kagan on why Harvard requires International Law as a 1L class, but not Con Law; after all, isn't Con Law so much more fundamental to our system than International Law? The subtext was that Kagan (who, of course, did not unilaterally impose the curriculum) believes international law is more important than our Constitution--or worse, should be a part of our Constitution (Kagan actually handled the look-to-foreign-law issue very well and with some substance). But the phrasing bordered on an accusation of lack of patriotism--you have more love/respect for the law of other countries than our own beloved (and perfect) Constitution.

Kagan gave what I thought was an interesting answer, explaining: 1) We require Legislation/Regulation course (that is part Con Law) that gives 1Ls the background about the structure of the legal and governmental systems; 2) Con Law is so complex that students are better able to grasp it as 2Ls and 3Ls (not an untrue statement, although probably true of just about everything in the curriculum); and 3) It is important for students to learn this because more students are going to do international litigation or international business transactions in their careers than are going to litigate commerce clause issues. Grassley's response was to repeat his point of "Isn't Con Law fundamental to our system and shouldn't something so fundamental be a part of the 1L curriculum?" Maybe next round she can explain that there are only so many hours in the 1L year.

2) "I would need to research that more" is this year's "I can't decide in the abstract" and "I can't opine on an issue that might come before the Court" (although we have heard some of the latter). This highlights that justices are not walking constitutional law experts who can answer every minute question off the cuff; answers to specific questions require thought and research.

3) Republicans have asked her for her "personal views" on particular cases, trying to get her off the "It is precedent entitled to respect" meme. They are saying, in essence, "Yes, it is entitled to respect, but what does Elena Kagan personally believe on this?" But, of course, since judges are not supposed to let their "personal views" influence them, why should it matter what she personally believes? You cannot have it both ways.

4) In response to another empathy question from Sen. Kyl, Kagan said: "I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other."

I will have more to say on the empathy thing in a later post. For now, I will say that I liked this answer because it re-introduces us to the adversary system and the role of parties and lawyers in the process of making law and deciding cases. Judges do not undertake a free-standing examination of the legal and factual issues (unlike those judges in other countries, who we certainly don't want to emulate). Rather, they at least start with the arguments presented to them by parties working in an adversary system. The judge figures out the law (which Kagan several times points out often is hard to determine) in part by weighing and balancing the parties' arguments against one another.

Adversariness and lawyering get completely overlooked in the balls-and-strikes vision of judging. The law simply is. The quality of lawyering (or even the fact that lawyering occurs) is irrelevant (which explains the outcome and some of Chief Justice Roberts' questions in this term's attorney fees case). Not a major talking point, but Kagan came back several times to parties and lawyers and the role they play.

5) Am I the only one who senses that this hearing is an order of magnitude better than a year ago? (No: Brandon Bartels agrees). This may be that Kagan seems to be having a ball up there and her personality and intelligence are shining through. Her answers seem more nuanced and a bit more honest and forthcoming at points. Kagan even rejected, explicitly, the idea of "robotic" or "automatic" judging and emphasized that many cases are difficult to determine what the law is, although she always immediately fell back to "judges-apply-the-law" oversimplification in the next sentence. there are cases in which it is difficult to determine what the law requires. True, she has not put forth the full-throated liberal constitutional vision that some (particularly on the Left) would like to hear. And she is no more forthcoming than her predecessors on substantive analysis of issues.

But she presents an almost-realistic picture of what law and judging really are all about, even if couched somewhat for political reasons. Maybe that is as much as we can hope for right now.

Tuesday, June 29, 2010

Please Help, if You Can

I'm reading Larry Lessig's new book Remix. He discusses the differences between commercial economies and sharing economies. He explains that friends do favors for one another in a sharing economy, and corporations and customers use cash as the medium of exchange in a commercial economy. He points out that if a friend missed lunch with you, it would be very odd for that friend to offer $50 to make it up to you. Okay, I buy that. But then he says this:

[I]t would be very odd if ... McDonald's asked you to "help out" by promising to buy hamburgers at least once a month .... "helping out" is not just rare in a commercial economy. It is downright weird.

Well, then, what are we to make of this ad in the current issue of the ABA Journal:

It reads:

If a trademark is misused it could come undone. If you didn't know zipper was a trademark, don't worry, it's not. But it used to be. It was lost because people misused the name. And the same could happen to ours, Xerox. Please help us ensure it doesn't. Use Xerox only as an adjective to identify out products and services, such as Xerox copiers, not a verb, "to Xerox," or a noun, "Xeroxes." Something in mind that will help us keep it together.

Dude, I'm sorry, but what the #@!& do I care if Xerox loses its trademark registration to "xerox"? Wow. I've got other stuff to care about. Like the lives of individual mosquitoes.

I only wish Lessig were right.

Now before you send me e-mail or respond to this post explaining to me why companies with borderline generic (or completely generic) trademarks engage in educative advertising campaigns, please stop. I know. (See Du Pont v. Yoshida, 393 F. Supp. 502, 527-28 (E.D.N.Y. 1975) (dubiously holding that "Teflon" was saved from genericide, in part, by Du Pont's diligent educational campaign).) Look, it is one thing to tell people that this way or that way is the right way or wrong way to use a word. But it is quite another thing to attempt to appeal to people's sense of right and wrong and ask them to altruistically "please help" a publicly traded corporation in its self-serving pursuit.

Honestly, speaking, it's unbelievable. What a bunch of weasels. I'm going to go downstairs and xerox something on the Canon photocopier right now just to do it.

How/When/Where Do We Write?

For the past week and a half, I have experienced a welcome period of productivity and synthesis on my book project. It's not that I wasn't writing before, it's just that something has changed; there is an ease of thought and composition that wasn't there previously. The project has turned into a tidal wave that I will happily ride until it dashes me on the beach (hopefully not the rocks!). There is one change--I've begun to add a second "midnight" work period from midnight to around 3:30 a.m. I have also started to write to music--Lady Gaga's "Bad Romance" seems to have some good karma for my keyboard. I feel slightly ridiculous, but I suppose it makes sense...our four kids are in bed, the house is quiet, the phone doesn't ring, no one comes by to make home repairs or see if we want to convert to new religions.

What are your writing routines? At what times and in what spaces are you most productive? Offices, home, or coffee shops? Early in the morning, late at night or just whenever a spare moment comes along? In music or silence? In what moods? In short, how are you generally at your most productive?

That Old-Time Fundamental Rights Religion

It comes as no surprise that the SCOTUS held in McDonald that the Fourteenth Amendment incorporates the Second Amendment against the states. But it is deeply laughable that the Court continued to reject cost-benefit balancing in the definition of the right. In the Court's words (page 44):

JUSTICE BREYER is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supra, at 38–39. 'The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon' [quoting Heller].'

This "fiat iustitia, et pereat mundus" rhetoric is sheerest silliness: The public will demand that the courts will take into account the costs and benefits of firearms possession in deciding whether the right has been infringed, and the courts will -- as they always do -- follow the public's marching orders.

So how will McDonaldactually be applied? In reality, costs and benefits will have to be consulted, simply because one cannot resolve practical problems of governance without doing so. Should guns be allowed in Schools? Bars? Prison visitation rooms? Courthouses? Should convicted felons be allowed to possess them? What if they have not been convicted of violent offenses? What if they really need firearms to earn a living or protect themselves? The notion that these sorts of questions can be answered intelligently by looking at what Bingham said to Fessenden in 1868 is the sort of goofiness that will fool only the most naive or diehard originalist.

Instead, if lower courts take Justice Alito's Old-Time Rights Religion seriously, we will be treated to horse doctor's doses of judicial bad faith. Courts will pretend to consult the oracles of the 39th Congress to determine whether municipal gun regulations are acceptable, surveying 19th century municipal ordinances for gun-free schools zones and the like, but they will, in reality, be applying their own folk sociology about the practical necessity of the law. Parties will try to smuggle in data in covert Brandeis briefs, glossed with phony historical window-dressing. Sooner or later, the courts will acknowledge some sort of "compelling state interest" escape hatch a la Grutter that will allow the issue of costs and benefits to be briefed in a forthright manner. In the meantime, we must suffer the nauseating Kabuki act of courts' pretending that they are just calling balls and strikes. Pay no attention to that policy guy behind the curtain, sez the Great, the Powerful SCOTUS of Oz.

Subjects v. Substance in Supreme Court hearings

With the meat of the Kagan hearings getting underway this morning, I read the fine new study by Lori Ringhand (UGA Law) and Paul Collins (North Texas Political Science). They coded the subjects of all questions, answers, and comments from hearings going back to 1939 into fairly precise categories ("Civil Rights," "Criminal Justice" "Judicial Philosophy/Interpretive Methods," etc.). They then show that the hearings do deal with a great deal of content on these subjects, particularly certain categories. They also show that there have been increases in both the numbers of questions/comments from the committee and answers/comments from the nominee. They further show that this increase began not with the Robert Bork hearings in 1987, but actually a year earlier with William Rehnquist's nomination to be Chief.*

Although Ringhand and Collins don't say it in so many terms, the conclusion people are drawing is that hearings are substantive, meaningful, and beneficial, not the "vapid and hollow charade" that Professor Kagan decried in her sure-to-be-talked-about 1995 article.

But this conflates the subjects discussed and the substance with which they are discussed. The questions, answers, and comments certainly are directed to important subjects. But (except for Bork) they do so in meaningless platitudes, oversimplifications, outright misstatements, or empty political rhetoric and invective ("activist," "outside the mainstream")--and sometimes a combination of all of these. The problem is not the subjects discussed, but their content. Put differently, the problem is not a quantitative one, but a qualitative one. So John Roberts and Sonia Sotomayor both talked about judicial philosophy--"umpires," "balls and strikes," "apply law to fact"--but in terms that no one could possibly take seriously (including, I expect, the nominees themselves). Sotomayor and Samuel Alito were asked about civil rights--"Doesn't your decision in Ricci, reversed by the Supreme Court, show that you let your personal views influence how you decide cases for those groups you like" "Doesn't your decision in Grove City College, reversed by the Supreme Court, show that you don't like civil rights and let those views influence how you decide cases"--but in entirely result-oriented terms. And that is before we get into the nominee's non-answer answers.

One of the great ironies of 1986 is that Rehnquist underwent a bruising battle for his elevation to Chief, while Antonin Scalia, nominated at the same time to fill Rehnquist's seat as Associate Justice, largely got a pass. Think the Democrats want that one back?

Your asterisk footnote

Do you have some boilerplate language you use in the asterisk footnote of your articles? Does it preemptively cover copyright permissions? My plea is that you give the matter some thought and attention.

My own nominee for the best copyright statement is Larry Solum, who teaches intellectual property among other courses at the University of Illinois College of Law. See why after the break.

I am a casebook author and a recidivist. Determining who owns the copyright, getting the permission, negotiating the terms and the fees, these are not the kinds of things I went to school for 7 years to do. The online services do not improve much on the process.

My publisher sets aside a small amount of money for permissions. Sometimes I can beg some more money from the Dean. Sometimes the fees come out of my pocket. Understand that the author's royalties for these books -- often divided among co-authors -- do not amount to a whole lot of money. I remember endorsing one of my royalty checks over to my teen age son as payment for yardwork . . . that month. True story.

I don't know Professor Solum, but I like the man. Why? Because his boilerplate copyright permission is generous and efficient -- for him and for other authors who might make scholarly use of his work:

"Permission is hereby granted to duplicate this paper for scholarly or teaching purposes, including permission to reproduce multiple copies or post on the Internet for classroom or other scholarly use and to quote extended passages in scholarly work, subject only to the requirement that this copyright notice, the title of the article, the name of the author, and citation to the Northwestern University Law Review be prominently included in the copy or extended excerpt. Permission is hereby granted to use short excerpts (500 words or less each, so long as the total word count of the excerpts does not exceed 50% of the total word count of this work) with an appropriate citation and without inclusion of a copyright notice. In the event of the death or permanent incapacity of the author, all claims to copyright in the work are relinquished and the work is dedicated to the public domain in perpetuity. Even if the author is then living, all copyright claims are relinquished as of January 1, 2050. In the event that the relinquishment of copyright is not given legal effect, an unlimited license of all rights to all persons for all purposes is granted as of that date."

Monday, June 28, 2010

Shorter Senators' opening statements

In case you missed them:

Everyone: "We know how awful, inane, and particularly vacuous the hearings were last year. We plan on doing better this year, because then-Professor Kagan told that we, and she, should be more substantive. So we will be more substantive this year. Of course, we think being substantive means throwing around empty terms and questioning the legitimacy of opinions and justices with which we disagree."

Democrats: "The conservative justices are activists who decide cases based on their personal policy preferences; look at McDonald and Citizens United. Roberts and Alito were untruthful in their hearings when they said they respected stare decisis; they overturned a 100-year-old precedent in Citizens United (actually only 20 years). Conservative justices are results-oriented in protecting corporate interests. Someone has to help the little guys against big corporate special interests. Brown and Loving good; Citizens United bad" [Update for one I forgot: We should not throw around political invectives like "judicial activist" too much, but let me tell you why Citizens United was an activist decision.

Republicans: "The liberal justices are activists who decide cases based on their personal policy preferences; look at the dissenters in McDonald. Sotomayor was untruthful in her hearings when she said she would mechanically apply perfectly plain law to facts; look at how often she voted her personal policy preferences this term (in those opinions with which I disagreed). Justices must be ready to do something for the American people about a growing and expanding government, but Justices cannot promote an activist agenda that the People did not vote for. Thurgood Marshall was a great lawyer, but he was an unapologetically liberal activist and thus not a good model for a justice."

I will be commenting on the hearings (hopefully a bit more substantively, assuming there is anything substantive to talk about) here and at the ACSBlog.

Did McDonald Overrule Apodaca?

No. But today’s decision
in McDonald v. City of Chicago did include an interesting footnote that stood out
to my criminal law-focused mind, dealing with the unanimous jury requirement
under the Sixth Amendment.

In applying the
Second Amendment to the States through the Due Process Clause, the majority in
McDonald rejected the argument that “incorporation” can provide a
“watered-down” version of federal rights. (p. 17) On the contrary, the Court held that “incorporated Bill of Rights protections ‘are all to be enforced against the
States under the Fourteenth Amendment according to the same standards that
protect those personal rights against federal encroachment.’” (pp. 17-18) The
Court, however, noted “one exception to this general rule. The Court has held
that although the Sixth Amendment right to trial by jury requires a unanimous
jury verdict in federal criminal trials, it does not require a unanimous jury
verdict in state criminal trials. See Apodaca v. Oregon, 406 U.S. 404 (1972);
see also Johnson v. Louisiana, 406 U.S. 356 (1972).” (p. 18 note 14)

Oregon and
Louisiana currently permit non-unanimous jury verdicts in felony cases. In
2008, the Supreme Court declined to review a challenge to Louisiana's law, in
Lee v. Louisiana. In McDonald, however, the Supreme Court noted: “[Apodaca] was
the result of an unusual [4-1-4] division among Justices, not an endorsement of
the two-track approach to incorporation.” (p. 18 note 14) After reviewing this
“unusual” 4-1-4 voting arrangement in Apodaca, the Court opined: “Apodaca,
therefore, does not undermine the well-established rule that incorporated Bill
of Rights protections apply identically to the States and the Federal
Government.” (id.) The Court concluded the footnote with a citation to Justice
Brennan’s dissent in Johnson, quoting Justice Brennan’s statement: “the
majority of the Court remains of the view that, as in the case of every
specific of the Bill of Rights that extends to the States, the Sixth Amendment
jury trial guarantee, however it is to be construed, has identical application
against both the State and Federal Governments.”

Justice Thomas
joined this part of Justice Alito’s opinion, making it the opinion of the
Court. Difficult to imagine that Apodaca still could survive this analysis, either on
the merits of incorporation doctrine, or on a stare decisis theory, no?

Was Justice Scalia Disrespectful to Justice Stevens on Stevens' Last Day?

Justice Scalia is known for his witty, and sometimes sharp, language in his opinions. Adam Winkler recently commented here, "Pot, meet kettle," when Justice Scalia reportedly decried the lack of respect in the world. I have thought that Justice Scalia's opinions, for all their brilliance, don't always model the ideal in civil tone, especially to young lawyers and law students who still are finding their professional voice. Today, however, I was really struck with something Justice Scalia included in his concurring opinion inMcDonald v. City of Chicago. After the break, tell me whether I've overreacted to or misunderstood Justice Scalia's comment.

"That is not to say that every historical question on which there is room for debate is indeterminate, or that every question on which historians disagree is equally balanced ... For example, the historical analysis of the principal dissent in Heller is as valid as the Court's only in a two-dimensional world that conflates length and depth."

Justice Scalia, of course, wrote the Court's opinion in Heller, and Justice Stevens the principal dissent.

This editorial strikes me as quite disrespectful, to my ear characterizing Justice Stevens' Heller dissent as the work of a hack, or a bad term paper. I'm no historian of any kind, but I don't think I need to be to know that this comment is unfair, and certainly does not advance Justice Scalia's substantive points in his McDonald opinion. Perhaps Justice Scalia meant only to be witty and not mean-spirited. Perhaps Justice Scalia knows Justice Stevens well-enough to know that Justice Stevens would not be offended, or might even chuckle. But for a Supreme Court opinion read by those of us without this inside knowledge, the comment reads as rude, not just to Justice Stevens, but also to anyone who may agree with Justice Stevens' analysis in Heller.

The More the Second Amendment Changes . . .

Today's decision in McDonald v. Chicago marks a major change in constitutional doctrine but one that will likely have only a minimal effect on gun control. For the first time, the Supreme Court held that the Second Amendment serves as a limit on what regulation state and local governments can impose on the right of individuals to have guns. Two years ago, in District of Columbia v. Heller, the Court ruled that the Second Amendment guaranteed an individual right to keep and bear arms unrelated to militia service. But that decision only applied to federal laws. Now the Second Amendment, like most provisions of the Bill of Rights, applies to all governmental entities in the United States.

From the perspective of gun rights, however, that isn't as big a change as it may seem at first. Forty-two states already guarantee individuals the right to have guns in their state constitutions. McDonald extends that right to the remaining eight outliers. None of those eight states, however, ever tried to completely ban gun ownership and qualified individuals can lawfully obtain guns in every one. The Second Amendment now applies more broadly, but gun rights more generally were secure long before this decision.

McDonald could still have a significant effect on gun control if the law of the Second Amendment were radically different from the state constitutional law doctrines relating to the right to keep and bear arms. So far, however, the two regimes are mostly the same. As I have shown elsewhere, under state law courts tend to judge the constitutionality of gun control under a relatively deferential standard of review. Known as the "reasonable relationship" test-which is not the same as rational basis review-this standard is uniformly used in state after state, and has been for over a century. There have been hundreds of state cases applying this standard to challenged gun laws, the vast majority of which have survived.

To date, the Second Amendment hasn't led to radically different outcomes. Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived. Formally, the Supreme Court has not adopted the reasonable regulation standard universally used in the states. But practically, the results have been the same. Other than a complete ban on handguns-which, apart from Chicago and its suburbs, no state or city has-gun control remains constitutionality permissible.

To be sure, McDonald will lead to a flood of lawsuits challenging every sort of gun control. And some laws, like New York City's extreme and discriminatory permitting scheme and California's refusal to approve certain guns designed for left-handed shooters, could be invalidated in the months and years to come. But if the scores of federal court decisions under Heller are any indication, the primary hurdle for gun control advocates will remain in the legislatures, not the courts.

Cyberbullying and School Administrator Jurisdiction

The New York Times ran a disturbing/interesting piece about "cyberbullying," and the challenges that school administrators face in fighting an old war (bullying) on a new technological dimension and plane.

Open Thread for Prawfs on Free Enterprise Fund v. PCAOB

Below is the BNA squib, and the opinion can be found here. Any reactions?

Free Enterprise Fund v. Public Company Accounting Oversight Board,No. 08-861. Provisions in the Sarabanes-Oxley Act of 2002 setting out the mechanism for removing a member of the Public Company Accounting Oversight Board violate the Constitution's separation of powers because they unduly restrict the president's constitutional authority over an inferior (as opposed to a principal) executive officer. The removal mechanism in Sarbanes-Oxley calls for removal of a PCAOB member by the Securities and Exchange Commission only for cause, and members of the SEC themselves are removable by the president only for cause; the dual for-cause limits violate the Constitution because they make the board not accountable to the president and the president not responsible for the board. The Sarbanes-Oxley provision governing removal of a PCAOB member is severable from the rest of the act. The PCAOB structure does not violate the Appointments Clause of the Constitution.

Open Thread for Prawfs on Christian Legal Society Chapter of UC-Hastings v. Martinez

Here's the BNA capsule on the Hastings case, just decided and opinion here.

Christian Legal Society Chapter of University of California, Hastings College of the Law v. Martinez, No. 08-1371. A public law school did not violate the First Amendment rights to free speech, expressive association, and free exercise of religion of a Christian legal student group by requiring the group to accept as members those who do not share the organization's core beliefs about religion and sexual orientation. The consequence of not opening membership in the group to all comers is to forfeit the school's official recognition of the group and attendant benefits of recognition.

Open Thread for Prawfs on McDonald v. Chicago.

McDonald v. Chicago, No. 08-1521. The Court says the Second Amendment, applies to the states. Five justices agree on the result, but disagree on the rationale; four dissent. What say you? Signed comments please.

Bilski and (Thankfully) Continued Uncertainty in Patentable Subject Matter

Thanks again to the folks at Prawfs for allowing me to loiter long enough to post about today's opinion in Bilski v. Kappos. The title of this post is nearly identical to the post I wrote when the Federal Circuit ruled (see that post if you have no idea what Bilski is about) - with the addition of thankfulness. Why should we be thankful? I'll discuss three reasons below:

A. The claims at issue here are abstract ideas, and thus not patentable (9 Justices). This is true even if "token" activities are undertaken outside the mathematical equation. (9? Justices)

B. Limiting patentable processes to only those that use a machine or transform matter is a useful test but is not the only test. (5 Justices - Kennedy, Roberts, Scalia, Thomas, Alito)

C. Section 100(b) defines process, and nothing in that definition excludes business methods per se or makes machine or transformation the only test. (5 Justices) Section 273 (which provides a defense for potential infringers of business methods) is evidence that business methods cannot be read out of the statute.

D. Just because business methods patents were not issued early in history, that does not mean that they should not issue now with changing times and technology (4 Justices - Kennedy, Roberts, Thomas, Alito)

E. In addition to being unpatentable as an abstract idea, the term "process" should not be read in the ordinary sense, but instead should be interpreted in light of history, context, and patent policy goals to exclude business methods, despite Section 273. (4 Justices - Stevens, Breyer, Ginsburg, Sotomayor) Interestingly, the concurrence implies that this is a statutory, not constitutional question.

F. The majority explicitly gives no further guidance about identifying an unpatentable abstract process.

Now, on to some analysis...

My Prediction

Just about everybody predicted that the patent would be invalidated 9-0. However, few focused on the statutory outcome. In my discussion about oral argument, I wrote the following:

Fifth, to that end, I was extremely disappointed that -- in an hour of
argument about the meaning of process -- there was not one single
mention of 35 USC 100(b), which states the statutory definition
of process. I would think that a court filled with textualists
would want to know what the text of the statute says. Indeed, the
definition, which defines a process as a "new use of a machine" would
have cleared up much of the confusion about why a method might be
unpatentable in the abstract, but patentable in a machine - when you
program software to do something different, you are programming a new
use of a machine. Even if you ignore the computer as "insignificant
post-solution activity," the new use falls under the statutory
definition.

In the end, ignoring 100(b) may be the largest problem with the machine
or transformation test, which requires that all
processes be tied to a machine or transform matter (and I do mean all
- the Federal Circuit recently applied it to a method of treating
patients with drugs). There are many, many processes from the inception
of process patenting until the present, that are new uses of machines,
matter, etc., but that are not tied to machines or "transform" matter.
Iron working, glass blowing, medical diagnostics, new uses for old
drugs, new uses for old machines, etc., are all historically patentable
despite not satisfying the machine or transformation test. The fact that
no one even mentioned it one way or the other is pretty surprising.

And, in fact, that's how the majority ruled. The court said:

Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as“[a]n orderly procedure or process . . . regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”). The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods.

Note the irony that Justice Scalia the originalist voted in favor of broad subject matter (though he did not join the opinion's discussion of evolving times, while "living constitutionalists" fell back on history to limit subject matter in Justice Stevens's concurrence. (Side note, I am working on a paper that analyzes historical patents to test the varying assertions about early method patenting).

The Undefinable Standard

In my article Everything is Patentable, I make clear that patentable subject matter jurisprudence is a mess that can never be cleaned up. While this opinion doesn't make the mess any worse (as discussed below), it hardly cleans it up. It seems like the Court could barely muster a majority, and it may well be that the majority shifted at some point. A decision unanimous in outcome but yielding a 5-4 (with 1 partial abstention) split is pretty good evidence that defining a clear standard is hopeless.

Indeed, though the concurrence doesn't provide a great solution, Justice Stevens rightly points out that the majority opinion does nothing to help identify abstract ideas. Indeed, as the concurrence points out, the Bilski claims are far more complex and concrete than the simple and "abstract" mathematical formulas rejected in earlier Supreme Court cases. Nonetheless, the concurrence doesn't exactly provide a clear solution by outlawing business methods patents without defining what a business method might be. Finally, the Court does not identify what postsolution activity is sufficient to make a claim non-abstract.

Instead, the better approach - the one I advocated in this case and advocate for the future, is to read process exactly as it is written - as the Court does - but to do away with the supposed historical limitation on abstractness. Instead, other requirements are more than sufficient if rigorously implied (and indeed, were considered by the Court here, even if implicitly.)

First, the most basic claims here lacked practical utility - they didn't do anything. Instead it is a simple concept that does not necessarily lead to any practical result. (The Court calls this the "concept" of hedging, and in fact the claim is for no more than that.) Second, the claims were obvious. (The Court discusses the patent's "use of well-known random analysis techniques.") Third, the broader claims were not enabled or described. The patent specification describes a particular application with a particular formula tied to a very particularize set of data, but did not describe how that formula might apply to fields other than those listed.

Perhaps in light of the continued uncertainty in patentable subject matter, the PTO and Federal Circuit will adopt my proposal to reject unworthy patents based on rigorous application of patent standards rather than trying to make new rules that simply cannot be defined.

Impacts on Business

But enough about me. What about the rest of the world? What impact will this case have? It's too soon to tell, but I suspect not too much outside of the increased cost and uncertainty associated with prosecuting patents relating to intangible subject matter.

The good news (though I am certain there are people - including four Justices, apparently - who would disagree with me):

a. Software patents seem to be clearly patentable unless they are too simple. Software patents were certainly not rejected - this was a big fear.

b. Business methods (less software and more human activity) might be patentable, but they also might not. I suppose this might appease all sides. Aggressive inventors can seek patents, and opponents can continue to argue that such patents are too abstract. This might be more costly to inventors than a clear rule that allowed all patents and more costly to potential defendants, but certainly less costly than the alternative for either side.

I suspect that how you come out on the result on innovation and development depends on how you view the role of patents as it relates to these types of patents. If you think that patents are critical to innovation (I tend to think so), then this ruling is a bad thing only to the extent that it increases patenting costs. If you think patents are unnecessary or even harmful for innovation, then you are probably not thrilled with this decision, but it could have been worse - the Bilski claims might have been allowed. Opponents are no worse off than they were pre-Bilski.

In the end, this decision seems like a draw - it doesn't expand eligibility, but it also puts a halt to the trend of limiting eligibility. It appears that this was exactly the intent. The Court did not want to foreclose the debate, and - in my view - did the best it could short of adopting my point of view. Justice Kennedy wrote:

Rather than adopting categorical rules that might have wide-ranging and unforeseen impacts, the Court resolves this case narrowly...

The Court's discussion seems to imply that it simply does not know what effect a broad limitation might have, and thus leaves the determination up to a case by case review. The result is not surprising given recent Court rulings in other patent cases that also advocate a case by case analysis.

A new study of Senate Judiciary Committee Hearings on Supreme Court Nominees

A remarkably timely empirical study purports to examine all the questions and answers given by SCOTUS nominees who appeared before the Judiciary Committee since 1939. The authors are Lori Ringhand (U. Ga. law school) and Paul Collins (U. N.Tex. Political Science).

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, sub-issue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which issues are most frequently discussed at the hearings, whether those issues have changed over time, and whether they vary depending on the party of the appointing president and the party of the questioning senator. We also investigate if questioning patterns differ depending on the race or gender of the nominee. Some of our results are unsurprising: for example, the hearings have become longer. Others, however, challenge conventional wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the hearings. We also discover that there is issue area variation over time, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we find that female and minority nominees face a significantly different hearing environment than do white male nominees.

Sunday, June 27, 2010

You know you're an internet addict when . . .

I arrived in Paris over a week ago and am now in Montpellier, where I'm teaching Business Torts (yes, in both places). My hotel in Paris had no WiFi access, and my two older children and I almost couldn't handle it. We ended up going to McDonald's more than once for the free WiFi, though actually I was glad to pay for food that the kids would actually eat. [Where did I go wrong in raising them?] I refused to eat at McDonald's myself, because that would have been just too pathetic, but I did drink a 1664 beer and a decent cafe au lait there. I won't confess how many times we went to McDonald's since we arrived, but I'm hoping there's a 12-step plan we can join.

Annual Law and Religion Roundtable

Rick mentioned the first Annual Law and Religion Roundtable the other day. It finished up on Friday, and was a fantastic two-day event. I was a co-organizer, but most of the hard work was done by Nelson Tebbe of Brooklyn Law School and Rick himself. There seems to be a lot of important and valuable work going on in law and religion these days, and in particular I hope folks are putting pennies away in their piggy jars or hoarding their PDFs, because it looks as if a lot of very interesting books about law and religion should be coming out in the next two years -- not only books in the works by various participants in the roundtable, but also books by others who couldn't attend. Some seek to revive or reexamine standard values that have been used in this area, such as neutrality, while others take a more jurisdictional or institutional approach to law and religion issues; still others have a distinctly "tragic" sense of the conflicts posed by law and religion issues in liberal democracies. I learned a great deal from all of them, and from the many articles and essays that the participants workshopped and the comments on them. I was especially grateful for the tough but supportive comments on my own work.

My real reason for writing this, though, is less to recap the event than to praise Brooklyn Law School and its dean, Joan Wexler, for hosting it. BLS is a lovely place, the facilities were top-notch, and everything ran very smoothly. Thanks to all, and especially to BLS, for a great event.

Saturday, June 26, 2010

Who Will Join Lessig Against the Forces of Plutocracy?

Via FB, I just came across one of Larry Lessig's recent presentations--this one to a law school audience--enjoining listeners to "Fix Congress First." It is characteristically sharp and witty and uses Lessig's powerful Powerpoint techniques.

Robert Alt, Senior Fellow and Deputy Director, Center for Legal and
Judicial Studies, The Heritage FoundationLt. Gen. William “Jerry” Boykin, United States Army (ret.) (pulled) (h/t Matthew Reid Krell)
Capt. Pete Hegseth, Army National Guard
Commissioner Peter Kirsanow, Benesch Law Firm
David Kopel, Esq., Research Director, Independence Institute
Colonel Thomas N. Moe, United States Air Force (ret.)
David Norcross, Esq., Blank Rome
William J. Olson, Esq., William J. Olson, P.C.
Tony Perkins, President, Family Research Council
Stephen Presser, Raoul Berger Professor of Legal History, Northwestern
University School of Law
Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished
Professor of Jurisprudence, Chapman University School of Law
Ed Whelan, President, Ethics and Public Policy Center
Dr. Charmaine Yoest, President & CEO, Americans United for Life
Capt. Flagg Youngblood, United States Army (ret.)

Le Corbusier and Certain Pro Se Litigants

Recently, I've been taking a peek at the writings of Le Corbusier. He's one of history's most celebrated architects, and he has had a profound influence on the modern cityscape. He has designed buildings such as the Saddam Hussein Gymnasium in Iraq. These are buildings that don't exactly exude warmth. Basically, Le Corbusier is the creative genius behind the concrete box.

What's that? You're not a fan? Well, you should know that Le Corbusier provided lengthy philosophical justification for his concrete-box style of building. Here is how he begins his argument in the book Toward a New Architecture:

The Engineer's Aesthetic, and Architecture, are two things that march together and follow one from the other: the one being now at its full height, the other in an unhappy state of retrogression. The Engineer, inspired by the law of Economy and governed by mathematical calculation, puts us in accord with universal law. He achieves harmony. The Architect, by his arrangement of forms, realizes an order which is a pure creation of his spirit ... he determines the various movements of our heart and our understanding; it is then that we experience the sense of beauty.

Here's another passage:

Eradicate from your mind any hard and fast conceptions in regard to the dwelling-house and look at the question from an objective and critical angle, and you will inevitably arrive at the "House-Tool" the mass-production house, available for everyone, incomparably healthier than the old kind (and morally so too) and beautiful in the same sense that the working tools, familiar to us in our present existence, are beautiful. It will be beautiful, too, with the vitality that the artist's sensibility can give to its strict and pure organism.

I'd quote more, but you've got a flavor for it: It sounds like a brief from one of those pro se litigants who is suing the president. If you've clerked, you definitely know what I'm talking about. In a word: CRAZY.

Sometimes you get the feeling that behind every lawsuit-against-the-president-pro-se brief, there's an unsuccessful cult leader. That's where Le Corbusier was different. He was not unsuccessful at all.

From the quoted material, you can see a central claim Le Corbusier is advancing here: My architecture is beautiful because I proved it is beautiful in writing. (A ranting, disconnected, pro-se-litigant-who-is-suing-the-president kind of writing, but that's beside the point.)

An argument such as this one, if it thrives in the fine arts fields of literature or painting, can only do so much damage. But because we are literally overshadowed by the creations of architects through out our day, architecture has the potential to injure. And Le Corbusier's style of architecture has damaged cityscapes the world over.

Governments, universities (law school's included), and public housing authorities in the United States got hit especially hard by the brutalist architecture hysteria in the 1950s, 60s, and 70s. People think lawyers are clever persuaders. But what about architects? How did they persuade people to actually erect such monstrosities? Gerry Spence, eat your heart out.

Many law schools are undertaking new construction projects. Many more will do so when the economy recovers. So, how should the legal academy judge its prospective buildings? With an architect's eye or a tenant's eye?

Several days ago, I asked for comments on which law schools have the best architecture. Two threads emerged in the responses. On the one hand, some responses regarded architecture as an artform and law-school buildings as artistic works. On the other hand, many responses heaped praise or disdain on buildings in terms of how comfortable they are, or how visually pleasing they are to look at.

This divide goes to a question at the heart of society's relationship with architecture. Commenter TJ put it this way:

Eric, you need to clarify the question. Are you asking for the "best architecture", or "the building environments that you would most like inhabit"? The two are not the same. To take but a simple example, Chicago's building is architecturally distinctive (whether in a good or bad way is debatable) on the outside, but the inside was (at least while I was there before the renovation) very far from comfortable or plush.

In fact, in my post, I tried to be deliberately ambiguous. In asking two ostensibly separate questions passed off as one, I wanted to illuminate the third question: What should be the true measure of greatness in a building?

Architecture needn't pander. But when it comes right down to it, it's better to have architecture that panders than to be stuck with an ugly building.

All the same, it's a choice that doesn't have to be made. There are a legions of buildings that inspire admiration as art and are also joyful places to live and work. Happily, for law schools that are now making plans to build new facilities, the current era of architecture has shown itself capable of producing such designs, ones that are simultaneously bold and pleasant. I hppe that today's law schools, when they become clients of architects, will insist on having it all.

Why Kagan Is a Risky Choice

The nomination of Elena Kagan was a risky choice for President Obama. While she is likely to have views more or less sympathetic to the President's -- although she's probably more of a free speech hawk than him -- she presents the President with political risks. Her opponents are casting her as inexperienced because she has never been a judge and only practiced law for a few years, and that line of attack has purchase with the American people. My own view is that the Supreme Court needs fewer people who were previously judges; some of the finest Supreme Court Justices had never before been judges, like William Rehnquist, Earl Warren, and Louis Brandeis. Judicial experience should not be mandatory for a Supreme Court appointment. Still, casting a nominee as insufficiently experienced and lacking in the requisite qualifications may be the most powerful line of attack in any Supreme Court confirmation battle.

In Advise and Consent, Lee Epstein and Jeffrey Segal examined the history of confirmation battles and found that concerns about experience and qualifications were more difficult to overcome than concerns about ideology. With one especially notable exception, Robert Bork, most nominees who are opposed on the basis of their ideology end up being confirmed. Nominating someone with views similar to his own is one of the perks of being President. But appointing someone who is thought to lack the requisite experience and qualifications can be devastating. Harriet Miers was forced to withdraw because she was seen as an unqualified crony of President Bush; Abe Fortas's nomination to be Chief Justice was rejected, even though he had already served on the Supreme Court, because he was seen as lacking the most important qualification for a Justice, impartiality (he had accepted payments for speeches from private businesses); Douglas Ginsburg still sits only on the D.C. Circuit because, as a professor, he showed disrespect for the law by smoking pot.

Barring any extraordinary revelations, Kagan has the votes to be confirmed. But President Obama doesn't need a squeak-though victory. His presidency is on the ropes already. If he had chosen a John Roberts of the left -- someone with a long background of arguing before the Supreme Court, like, say, a Seth Waxman -- this nomination could have been a political victory for the President. Instead, even if Kagan gets through and turns out to be a terrific Justice, the President will have lost some of the confidence of the electorate that is so precious to him now.

New C-SPAN poll on the Kagan Nomination

The Kagan confirmation hearings begin Monday morning. C-SPAN conducted a poll this week to assess popular opinion. What is public awareness of the hearings and the nominee? What is the Court's approval rating?

A few highlights of the results and a link to the poll after the break.

The survey of 1,512 self-identified voters, conducted for C-SPAN on June 18, 2010 by Penn, Schoen and Berland Associates, LLC, shows far less awareness of Ms. Kagan’s nomination to the Supreme Court than the awareness of Sonia Sotomayor’s nomination a year ago. Only 19% correctly named Ms. Kagan as the nominee, while 43% were able to correctly name Ms. Sotomayor in a July 2009 C-SPAN poll. Thirty-eight percent support the Kagan nomination, 30% are unsupportive, and a third has no opinion about the nomination.

Asked about basic qualifications for Court appointees, nearly two in three (64%) respondents say the gender of a Supreme Court nominee is not important. But when asked about a nominee’s law school education, essentially the same number (63%) would prefer the next Supreme Court justice come from a “different background,” other than the Ivy League Law schools of Yale, Harvard and Columbia which produced the eight incumbent justices and the current nominee.

The poll also shows that nearly half of participants (48%) believe the Supreme Court is the branch of the U.S. government that best serves the public’s interest, but only 29% say the Court is doing a good or excellent job (and, 12% say the Court is doing a poor job).

Complete results of this survey can be found as C-SPAN's website at this link:

When the Jury is Out (Visiting)

I've always thought that the McVeigh jurors' Oklahoma City visit is one of the most interesting chapters in the Oklahoma City bombing story.

Juries are fascinating institutions--their behaviors are at once so visible, and so private. And as visually accessible as they are during trial, jurors are regarded as "off limits" during and often after litigation as well. They often remind me of scorpion fish...it's entrancing to watch them move along, but it's hard to forget that contact with them is regarded as legally poisonous for certain individuals (such as parties to an action).

Jurors are often charged to deliberate and deliver verdicts based on reason and not emotion, on facts or evidence and not passion. As a law and emotion scholar, I very much agree with scholars who have problematized the binary "emotion/reason" distinction. Thus, it seems to me a matter of common sense that jurors will or do feel more (or more positive emotions) for some parties than for others; I see these ties as inevitable and therefore not a subject of alarm in general. Although this oversimplifies the concept of "emotion," the mere fact that a jury feels emotions towards certain parties does not render their determinations illegitimate. Emotions can educate as well as prejudice. Sentencing testimony often reduces jurors in capital cases to tears--but they do not always convict a defendant of murder; the jury in Nichols' federal trial convicted him of involuntary manslaughter. Our court system has managed to rub along for quite a while now, its adjudication machinery lubricated in part by emotion.

But these ties come to the fore when, every so often, a juror, a party to the case, or a victim or victim's family member tries to establish contact with someone on the opposite side of the jury box after the jury has been dismissed. Sometimes victims' family members and friends will thank jurors as they leave the courtroom (see story here), and one juror engendered media inquiry after she sent flowers to the defendant in a vehicular homicide trial as a "goodwill gesture" after he was acquitted (see here).

In the McVeigh case, after the jurors in Denver convicted him of all 11 counts and sentenced him to death, one of the jurors stated in a media interview that she would like to visit Oklahoma City one day. A coalition of family members and survivors of the Oklahoma City bombing granted that wish one year after the McVeigh trial. Members of this group wanted to thank jurors for their service and for essentially putting their lives on hold during the difficult trial. All but one of the jurors and alternates traveled to Oklahoma City from Denver, Colorado in June 1998 with their spouses or support persons. That weekend, jurors planted a tree at the state capitol building in memory of bombing victims, visited the bombing site, and attended dinners with other family members and survivors. Family members, survivors, and jurors remarked that the visit allowed them to "come full circle" after the trial experience. Jurors appreciated the opportunity to more fully contextualize the evidence they had heard at trial and delighted in actually speaking with those family members and survivors that had given impact testimony as well as meeting many others. Family members and survivors regarded the opportunity to meet and speak with jurors as integral to their reconstructive efforts. Both groups wanted to express appreciation and gratitude and give support and reassurance.

Predictably, the jury's visit was controversial; lawyers for both McVeigh and Nichols panned the idea as in appropriate or outrageous. Though Oklahoma officials were more enthusiastic about the visit, attorneys involved with McVeigh's federal prosecution were against the visit, concerned that it would tarnish the dignity of the criminal justice system and potentially affect McVeigh's appeals. A legal scholar uninvolved in the case stated in a media interview that this was a "terrible thing for the jury system" because it improperly held jurors accountable for their decision and was cathartic for family members.

The McVeigh jury's visit to Oklahoma City was certainly unorthodox. But it violated no court rules. As they stated in their replies to critics of the visit, the jurors were private citizens at the time of the visit (although the visit itself stemmed from their jury service). And if family members and survivors found it cathartic, the trial was over. At the time of the visit, there were many references to the McVeigh jury verdict as proof that the "system worked"--that jurors were able to "put aside" emotion and render a verdict based on the evidence.

There was no such visit for the jurors in Nichols' federal trial, where he was convicted of the capital count oof conspiracy to use a weapon of mass destruction but not of the eight counts of first degree murder for the deaths of the federal employees. Instead, the jury opted for the lesser charge of involuntary manslaughter. Nichols was sentenced to life in prison without the possibility of parole after the jury deadlocked on whether or nor to sentence him to death because they disagreed on whether Nichols intended people to die in the blast. Presumably, Nichols' verdict it did not prove that the "system worked" as the McVeigh case did for various reasons, including issues with jury selection where Nichols' attorney Michael Tigar was allowed to rehabilitate potential jurors. The jury's verdict is a somewhat strange animal; one would think that conspiring to use a weapon of would entail the knowledge that people would be killed.

When I discuss this story with my colleagues, it never fails to spark an interesting discussion about law and the propriety of emotions and emotionality inside and outside the courtroom--issues about which legal scholars and practitioners remain undecided.

What's your classroom song?

At MLB games there is a fun tradition of playing a few bars of a signature song for a player when he takes his at-bat -- it is designed to psyche up the home team players and to rev up the home crowd. Some parks also play musical prank songs to tease visiting team players.

What would you choose as your classroom song? A song that would get you psyched up and the students rev-ed up for class. You get points for being clever and humorous.

My song revealed after the break . . . with some help for choosing yours.

You can go to the ESPN - The Magazine "Diamond Trax" site and hear the at-bat songs for players on your favorite team and if you hit the "random" button it will give you some suggestions for picking your own classroom song.

A "Tort"uous Question...

My apologies for the bad pun. I have a legal challenge for all you folks. Back in the prehistoric days of this century, when I was in the throes of law school, I seem to remember that in my torts class we covered cases with objects in the case name, often cars, such as Smith v. 1967 Chevrolet (which is not an actual case). Yet, I can't find these cases in the casebook that I teach from, and the search engines are not helpful because they do not view terms such as " Pinto" or "Chevrolet" as names. I not only remember seeing these cases, but I remember discussing these strange naming practices with others (yes, a sure sign of law nerd-dom). Can anyone help me out here?

These cases always reminded me of the medieval practice of trying (and even sometimes punishing or executing) animals such as cats or pigs or cows for witchcraft. If that were still true, we could sue all types of animals for environmental disasters like the Gulf oil spill. Imagine what legal troubles the Obama's dog, Bo, would be in...

I will be back very soon to blog about the time that the McVeigh jury visited family members and survivors in Oklahoma City after the trials of McVeigh and Nichols had ended.

Thursday, June 24, 2010

Law and Religion Roundtable

What a great first day at the Law and Religion Roundtable in Brooklyn, courtesy of BLS's Nelson Tebbe, Paul Horwitz, and a wonderful group of participants and presenters: Government speech and social meaning, desert crosses and Ten Commandments monuments, moral freedom and public reason, natural-law-honoring judicial activism and First Amendment protections for atheists, "tragic historicism" and Kent Greenawalt's response to some (friendly and admiring) critics . . . and more to come! Kid, meet candy store.

Some jurisdiction/merits clarity

I don't know much about § 10(b) or its extra-territorial application, the subject of today's decision in
Morrison v. National Australia Bank. But I was cheered by Part II of Justice Scalia's majority opinion, which held that the question of the extraterritorial reach of § 10(b) does not raise a question of subject matter jurisdiction. Rather "to ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question." The court had jurisdiction under 15 U.S.C. § 78aa, an express grant of exclusive jurisdiction over all claims to enforce the Securities and Exchange Act, which gave the court the power to adjudicate the question of whether § 10(b) applies to the conduct at issue.

Thank you, Justice Scalia, for finally putting forth a clear explanation for the jurisdiction/merits divide as to federal statutes (although it would have been nice if you could have cited me). This standard should carry over to other statutory claims, such as the Foreign Trade Antitrust Improvements Act, which places limits on the extraterritorial persons and conduct reached, and thus prohibited, by the Act. A unanimous Court now has made clear that the question of whether a statute applies to some conduct means whether it prohibits some conduct, which is a merits question.

Book review of "Acting White"

Buck’s terrific book is longer on analysis than prescription; but its analysis comprises such invaluable history, and so deftly counters any fears underlying the pretense that the “acting white” charge is fictitious, that I cannot imagine we will soon see another book so utterly necessary on what used to be called the Race Question.

The SCOTUS Bunker

The secret bunker built during the Cold War for Government officials at the Greenbrier resort is no longer a secret -- today you can go on a tour of that facility. But did you know that the SCOTUS justices had their own secret bunker? (I did not know that until I read the latest issue of Mental Floss - - a magazine we subscribe to that is always a fascinating read.)

Learn more and see photos of the SCOTUS facility after the break.

The Mount Weather Emergency Operations Center in West Virginia is now a Homeland Security facility under the jurisdiction of FEMA. The facility was designed to accommodate several thousand people. The POTUS, the Cabinet, and the Justices were to be provided private sleeping quarters.

Click here to read an account of the facility and to view pictures and aerial photos.

The Dunning-Kruger Effect

Did you hear the one about the
bank robber—get this: 5 feet and 6 inches, 270 pounds—who thought that if he
rubbed lemon juice on his face and walked into a bank, no one would recognize
him?That he would be completely
invisible, even to surveillance cameras?When arrested shortly after the surveillance tapes were played on the
local news, the robber was incredulous.“But I wore the juice!”

I came across this story in Errol Morris’s series in the NY
Times titled "The Anosognosic’s Dilemma: Something’s Wrong But You’ll Never Know
What It Is."While the entire
series is fascinating, what hooked me was the story about the bank robber.In fact, it’s also the story that
hooked Professor David Dunning of Cornell.Dunning’s interest went something like this:The robber was clearly too stupid to be
a good bank robber.Was it
possible that he was also too stupid to know he was too stupid to be a good
bank robber?Enlisting his
graduate student Justin Kruger, Dunning went on to research the matter and
conduct studies.The result was
the paper “Unskilled and Unaware of It: How Difficulties of Recognizing One’s
Own Incompetence Lead to Inflated Self-Assessments.”His research also resulted in what is frequently described
as the Dunning-Kruger Effect: the incompetence to recognize one’s own
incompetence.

Reading
this, I immediately started thinking about a particular relative I have, as
well as one or two students I’ve encountered, and even a few friends.(The Dunning-Kruger Effect also fits
into a recent segment on Jon Stewart’s The Daily Show about obesity, which you
can watch here (about 9 minutes in)).But mostly, the
Dunning-Kruger Effect got me thinking about criminals and my days as a federal
prosecutor.

So
many of the criminals I prosecuted were, let’s say, not very bright.They were so not bright that catching
and convicting them was relatively easy. (These were mostly the ones that
resulted in guilty pleas.)One
thing I always found troubling as a prosecutor was that, in a way, we were
fooling the public.We let the
public think that law enforcement and prosecutors were doing a brilliant job of
keeping the streets safe, or maintaining the integrity of the financial
markets, or ferreting out public corruption.Sure, this was true some of the time. But a lot of the time,
we were arresting low-hanging fruit, the bad guys who were so naïve they didn’t
realize they were leaving a trail behind them that practically glowed in the
dark.In short, in a world where
there are smart criminals and not-so-smart criminals, we were
disproportionately getting the latter. Are we comfortable with that kind of
justice?I don’t know.

Another
place where the Dunning-Kruger Effect gets played out is probably police
interrogations, especially defendants who offer false-exculpatories.There’s a reason why Miranda doesn’t
seem to have made a real difference in suspects’ willingness to talk to the
police.So many of the criminals
we arrest are too stupid to know that they’re too stupid to fool their
interrogators.So here’s my
thought for today: It would be nice to think we’re successfully locking up the
bad guys.But if we were honest, I
think we’d have to concede that we’re mostly locking up the not-so-bright bad
buys.Right?

Long tennis matches and case-based rulemaking

My interest in sports law always has been about sports-as-law; that is, what can sports tell us about law, legal rules, and legal systems. The latest example is the epic early-round match at Wimbledon between American John Isner (who at 6'9" also has the distinction of being the tallest player around) and Frenchman Nicolas Mahut. After ten hours of play, the two are tied 59-59 in the fifth set (which itself has lasted more than seven hours). Play was suspended because of darkness yesterday and will resume today sometime after 10 a.m. EDT (I would not be surprised if the match ends quickly today and is over by the time you read this). [Update: They played for about another hour today, with Isner finally prevailing 70-68, which means that just today's portion of the match was an extended no-tiebreak set]

Wimbledon (like the French and Australian Opens, but unlike the U.S. Open) does not allow for fifth-set tiebreakers, so the set continues until someone wins two straight games (with a break of service). This rule has provided some great historical moments--the 8-6 fifth set between Bjorn Borg and John McEnroe in the 1980 Men's Finals or the 16-14 fifth set between Roger Federer and Andy Roddick in last year's Final. But it also creates ridiculous moments such as this one. Neither player is close to breaking the other's serve, so no one is close to winning two straight games. Actually, this match may highlight why many believe grass tennis is obsolete, at least for men--serves are just too overwhelming (Isner has 98 aces, Mahut 95) and breaks are extremely rare. Both players actually are playing well--lots of winners, few unforced errors. But that is because their serves are so dominant that service points tend to be short, with that dominance exaggerated by the speedy grass surface.

So here is my rule-based quesion: How likely is it that Wimbledon will move to a final-set tiebreaker in the wake of this match? And should the change be made? This illustrates the problem of case-based rulemaking, which is the norm in U.S. (and probably most) legal cultures.

Legal rules generally are made within a particular factual setting. This is obvious where courts make rules (common law or constitutional) in the course of resolving an actual case or controversy. But it also is true for legislative bodies making prospective rules of general applicability, because they usually act with a particular event, case, or situation in mind. The problem with case-based decisionmaking (as Fred Schauer and Richard Zeckhauser argue) is that the case which leads to the rule often is an outlier, an extreme, unusual, unrepresentative case; thus the legal rule that results, enacted in response to those unique outlier facts, may not be the optimal rule for the ordinary situation. This is particularly true for legislative rulemaking, because legislators tend to act, often too quickly and often in something of a moral panic, in response to, and to take care of, the latest high-interest, notorious story that captures media and public attention, even if that story is unusual and far from any norm, and even if the new rule has unintended consequences.

So what should the powers that be at Wimbledon do? Obviously, the Isner-Mahut match (or anything even close) is unprecedented. Should they change the rules to prevent something like it from happening again, since the chances of that have to be slim? We arguably don't need the rule change to keep this case from arising again; a match such as this is so unusual that it never will happen again on its own. So should a rulemaker make a change to prevent a highly unlikely repeat of this unrepresentative match, at the (unintended) loss of future memorable matches (a la Borg-McEnroe) that do not devolve into the current absurdity?

Note that this does not necessarily speak to the merits of the switch to a fifth-set tiebreaker; maybe that is the appropriate rule (certainly the U.S. Open folks believe it to be), especially in light of the modern grass game. But case-based rulemaking is not only problematic because it may produce the wrong rule, but also because it may produce the right rule for the wrong reasons. In other words, Wimbledon officials must be conscious of all the policy issues and implications in deciding whether a final-set tiebreaker is the "best" rule as a whole. The arguments for change must be more than preventing a notorious-but-unlikely case such as Isner-Mahut from happening again. If that is all they have, they should not change the rule.

I suppose that the tune is appropriate because I've been spending quite a lot of time this week chatting on the (banana) phone with sources for my book--family members and survivors of the Oklahoma City bombing, lawyers, journalists, whoever I need to talk to to fill in those informational gaps that seem to crop up now that my book manuscript is getting tighter. I've also placed a few calls to folks that I am seeking to interview in order to either schedule an interview or ascertain whether they are willing to participate in the first place.

I'm certainly no stranger to qualitative interviewing--I've conducted many, many open-ended interviews that are at least 2.5 hours long, and often much longer. I have sat in living rooms and been awed and humlbed by the trust and the testimony that my interviewees impart. But there is nothing quite so awful as getting ready to ask someone who has undergone a terrible experience in their lives to spend over two hours discussing it with you. Though I recognize that such qualitative interviews are valuable, I always feel as if I am imposing, and worry lest my enthusiasm for my work make me sound a bit crazy in the bargain. Emotionally speaking, digging up relevant law review articles on Westlaw is far easier.

I've often thought that in legal research, there is rarely that raw human element that one sometimes encounters in sociological pieces. Perhaps this is because that rawness can be wrapped up or walled off with bits of legal theory and analysis that conveniently further discussions at the same time as imposing distance between authors and their human subjects. This distance is literally a critical distance; without it, our findings and conclusions are not as reliable. One of the most wonderful and challenging things about conducting qualitative interviews about emotionally difficult subjects is that you form close ties with interviewees. But these same ties make it harder at times to deconstruct and analyze the interviews produced through these collaborative research relationships.

I'm optimistic that by the end of the summer the phone calls will be behind me and the book manuscript will be largely finished. The discomfort of making cold-calls is ultimately a small price to pay for the deeply rewarding experience of completing this book project. I'm sure that it is these connections that I will remember, and not the awkwardness of first introductions. Until then, I guess that I will have to keep dialing the banana phone...

Federal Law Should Require Online Availability of Instruction Manuals

Congratulations on your purchase of a new consumer product! IMPORTANT: RETAIN THIS INSTRUCTION MANUAL FOR FUTURE REFERENCE.

Annoying, huh?

Here is a proposal for a new federal law. It's pro-consumer, pro-safety, and pro-environment. The operative provision would be this:

All commercial manufacturers of consumer products that are sold with instructions, manuals or other such documentation shall permanently label such products with a URL web address where consumers may download copies of the documentation. The Federal Trade Commission shall have the authority to promulgate regulations under this Act and to bring enforcement actions.

This statute would be especially timely for me: I am moving offices. In the photo below, you can see just a small sample of the flotsam product documentation I've come across. Having consumers file and save instruction manuals is absurdly out of date. In fact, only the mythical hero consumer would file and retain a lifetime's worth product documentation. But thanks to the internet, there's a meaningful way to keep product documentation organized and readily available.

The law I'm proposing would unclutter offices and homes. On an individual level, that would be a substantial convenience. But considered cumulatively over several years and millions of consumers, the economic benefit in productivity gained and time saved time would be significant — more than enough to make a law worthwhile. Online availability would also save trees, reducing the need for the paper and cardboard used in filing, storing and sometimes copying the instructions.

It could also save lives. A recent baby car seat I bought includes a pocket within the seat-back for inserting and retaining the instruction manual. This is fantastic, since missing instructions can lead to a failure to properly install the car seat, which is a serious danger. Having documentation for all products available online would extend this kind of safety factor to tens of thousands of other products.

The Non-traditional Dean: A Growing Trend? Pros & Cons?

A recent article by Jack Weiss, who is the Chancellor/Dean at LSU law school explores the pros and cons of non-traditional deans, i.e., lawyers and judges whose career paths have been primarily outside the legal academy.

Is this a developing trend? Is it a good development? What are the pros and cons of the non-traditional candidate versus the traditional candidate?

A developing trend. Weiss’ own review of the 2009 roster of American deans at the top 100 ranked law school counted only 8 deans with a predominately non-academic career track at the time of their appointment. By his count, there were 21 “traditional” deans who had followed the paradigmatic path of getting on the tenure track after only a brief stint clerking and practicing. He classifies an additional 40 deans as hybrids who, besides being from the tenure track, previously had significant non-academic career experiences in law practice and government service.

Pros and Cons. Weiss distinguishes the different roles that law deans play to evaluate the strengths and weakness of the traditional versus the non-traditional dean. He argues: (1) a tenure track experience standing alone does not equip a person with the entrepreneurial skills needed for managing resources and fundraising; (2) a non-traditional dean is equipped to reconcile the doctrinal side of legal education with the clinical skills side; (3) someone from outside the academy is a more resolute agent for change; (4) an experienced lawyer can be an effective institution defender and conflict manager; (5) someone who has not been a teacher and scholar can nonetheless appreciate and evaluate good teaching and good scholarship.I cannot say that I myself am entirely persuaded to all of these propositions.

A modest conclusion. You will have to read Weiss’ article to fully appreciate his arguments. But if you know the fact that Weiss himself is a non-traditional dean, you probably can predict his modest conclusion: “search committees, university presidents, provosts, and faculties hiring law school deans should not overemphasize the relevance and importance of a deanship candidate’s career academic experience nor undervalue the experience of the candidate who comes from practice, the judiciary, business, or government” (942). I do agree with that much.

Another sign of the apocalypse

Tongue in cheek: What has been the effect of the vampire craze on the workload of the federal courts?

I will allow the press release to speak for itself:

Federal Judges and Vampires Teach Student Rights, Wrongs

June 21, 2010

The vampire craze recently invaded a courtroom in the U.S. District Court for the District of Columbia, the last of a series of trial simulations.

High school teachers, some dressed as vampires, testified in a true-to-life trial simulation. Using a fictional but realistic scenario, the teachers posed as student vampires who posted a vampire-themed poem and related comments on the school’s “Facebook” page. School officials had the postings removed, setting off a courtroom clash over free-speech issues.

More than 500 teachers from across the nation participated in eight programs during the 2009-2010 academic year while in the nation’s capital under the auspices of the Close Up Foundation. The programs, hosted by Chief Judge Royce Lamberth, were produced by the Administrative Office of the United States Courts.

For more information about arranging for a program at local federal courthouses, high school government teachers should contact National Outreach Manager Rebecca Fanning, at aogrp_outreach@ao.uscourts.gov.

Scalia, At It Again

Last week, the Supreme Court decided Stop the Beach
Renourishment v. Florida, a case dealing
with the question of whether judicial rulings that curtail property rights
constitute a taking under the Constitution.The Court split 4-4 on that question
(while ruling 8-0, with Stevens recused, that no change in property rights was
involved in this particular dispute).As usual, Justice Scalia’s opinion was laced with acerbic comments about
the arguments of the Justices who disagreed with him. What is so odd is that
Justice Scalia is on record that the one thing he would like to change about
America is what he called “the coarsening” of our public culture.Seriously.

In a televised interview with Stanley Pottinger a few years
ago, Scalia was asked to imagine he was King and to
choose one thing in the country to reform.At first, Scalia brushed aside the question but eventually
he said that our culture was becoming “less decent, respectful.” That was the
one problem—not reducing judicial activism, not drug addiction, not criminal
violence—that Scalia said he worried about.

Surely Scalia was right that our culture has grown too
coarse.We attack people relentlessly and fail to see the value and merit in the perspectives of
others.But is there any Justice
more inclined to argument by invective, to make disagreement an opportunity for name-calling and derision?

This time, Scalia’s attacks were aimed at Justices Breyer and
Kennedy.Breyer’s position,
according to Scalia, was a “Queen-of-Hearts approach” was “reminiscent of the perplexing question how much wood would a woodchuck
chuck if a woodchuck could chuck wood?”Scalia also took a shot at Kennedy’s opinion in Lawrence v. Texas, which we says, dripping with sarcasim and contempt,
embodies “the wonderfully malleable concept” of due process which, Kennedy somewhat famously wrote, protects even the “liberty of the person both
in its spatial and its more transcendent dimensions.”

Tuesday, June 22, 2010

Welcome to CALI's E-Landgell Sponsorship

We are thrilled to welcome the sponsorship of CALI (the Center for Computer Assisted Legal Instruction) for the next two months. CALI is beginning an initiative that should intrigue the Prawfs readership: they are about to begin publishing digital casebooks that can be distributed via readers such as Kindle and iPad and they are keen to have prawfs create and edit content for them to distribute. You can learn more about CALI's e-Landgell project over here. Thanks again, CALI, and welcome to Prawfs.

Patent Movies

I just watched a wonderful movie about software patents: Patent Absurdity (Luca Lucarini 2010). It's freely downloadable, and I heartily recommend showing it if you teach Intellectual Property or Patent Law. The best thing about it is, it's pitched at the perfect level for law students. It's not dumbed down, but it's also not so technical that you need to be a full-fledged patent lawyer to enjoy it. And with a 29-minute runtime, I'm planning on showing it in-class. It puts an astonishing amount of material out there very quickly, giving you a feel for a ton of doctrine, industry practice, and historical context. (My favorite part is the Cold War nostalgia graphic depicting the software superpowers' patent arms race, which then explodes into patent-litigation armageddon.)

Another great patent movie is Flash of Genius (Universal 2008). A feature-length film, it's better for a homework assignment or for showing on an optional movie night. As general-audience fare, it's light on doctrine, but it's filled with insight into the idea of the heroic inventor in American culture. It also provides a compelling portrait of the draining nature of the courts and the litigation process.

I should note that patents and movies share an important historical intersection. Many people credit Edison's patents on motion picture technology, and the desire of nascent film studios to stay away from Edison's East Coast business operations, as a key factor in the development of Hollywood and Southern California entertainment industry.

Judicial Takings

I have to admit that I was fearing the worst from Stop the Beach Renourishment, Inc. v. Florida Dept of Environmental Protection, the Court's recent takings clause case, but the result was, to my mind, striking for its reasonableness. The Court unanimously upheld the Florida Supreme Court's decision that Florida's complicated beach renourishment scheme did not take property from beachfront landowners. The case raises a number of interesting questions. Among these was the intriguing question, as Ben Barros put it in his comments
to the New
YorkTimes,
"why would a beachfront property owner oppose beach renourishment?" As someone who has been critical of beach renourishment as a taxpayer funded giveaway to well-heeled beachfront owners, I found it a bit jarring to agree with with the (shall we say) idiosyncratic plaintiffs with the bust of Ronald Reagan in their office that we should leave beach erosion and accretion to mother nature.

Although the decision on the merits is interesting -- especially to property geeks like me who enjoy reading about the difference between avulsion and accretion within the common law -- the more interesting part of the opinion was the back and forth between Justice Scalia and Justice Kennedy over the question of "judicial takings." Apparently important to the property rights community, judicial takings is not a topic I've given a ton of thought to, aside from the brief discussion of the issue in my first-year property course. Reading over the opinions and the commentary in the days surrounding the decision, however, a few (somewhat half-baked) thoughts came to mind.

First, as I worked through the opinions, I have to confess being initially sympathetic -- in an abstract way -- with the bare possibility of judicial takings and with Scalia's clean argument for treating new property rules created by the judiciary no differently than new rules enacted by the legislature or by an administrative agency. But, for reasons I'll get into below, I'm not ultimately convinced that this equivalent treatment is actually justified most of the time.

Second, a commentator on NPR talked about the doctrine of judicial takings as potentially limiting the power of judges. This struck me as true in a sense, but also a little misleading. Although a judicial takings doctrine would arguably impose some new constraints on state courts, the doctrine would simultaneously seem to dramatically enhance the power of federal courts to review state court decisions on takings clause grounds. And, last time I checked, federal judges were also judges.

Now, it's not completely clear how you'd get to federal court to raise your claim, in light of the onerous exhaustion requirements the Court has imposed on takings claims under Williamson County. It's an interesting question to consider whether a doctrine of judicial takings would necessarily open up an avenue of collateral appeal of state court civil judgments in the lower federal courts -- almost like habeas corpus for disgruntled civil litigants. Scalia emphasizes the route used by the plaintiffs in this case --
certiorari to the Supreme Court from a final judgment in state court, which would not be very significant in light of the small number of cases that could successfully get to the high court, but that would be the required path only for the litigants in the case first giving rise to the so-called judicial taking. For other litigants, he does not rule out a collateral attack in federal court if a takings claim in state court would be futile.

Scalia tries to paint this as nothing new, since this route to federal courts is already available for challenges to state exeuctive or leglislative actions as well. But there does seem to be something new about the judicial takings route, particularly in light of the expansive view of the takings clause Scalia has endorsed in the past. Specifically, I'm not sure how Scalia and the rest of the plurality who favored judicial takings would cabin the doctrine to cases -- like this one -- where a state court explicitly considers the meaning of its common law of private ownership. After all, in Eastern Enterprises v. Apfel, Scalia and Thomas both endorsed the notion that the retroactive imposition of monetary liability violates the takings clause.

If that were the law, then it's not clear that the doctrine of judicial takings the plurality endorses in Stop the Beach Renourishment wouldn't open the door to a federal claim for any party who thinks a state court got the law wrong, if the result of the new legal rule would be an award of damages against the claimant. And this would be true even if the law the state court got wrong were the law of contracts or torts, and not just the law of property. A state supreme court case on the law of, say, contracts, which the claimant thinks changed clearly established law and which, if applied in the claimant's case, would result in an adverse damages award, would seem to operate, from the standpoint of Scalia's version of the takings clause, the same as the retroactive imposition of monetary liability in Eastern Enterprises. And so a robust doctrine of judicial takings would appear to create a very dramatic and broad power to challenge civil state-court decisions of any sort in federal court. For the losing party, the path of appeal would be through a judicial takings claim in a cert petition to the Supreme Court. But for non-parties to the original case for whom the state high-court decision would adversely affect their interests, the door would seem to be open to a takings challenge in lower federal courts.

And this gets at why I think Scalia goes wrong with his easy argument for treating courts the same as other branches of government. His mistake comes early on in the opinion where he says that "the classic taking is a transfer of property to the State or to another private party by eminent domain." I think this is wrong. The classic use of eminent domain is a transfer to the state. The so-called private-to-private uses of eminent domain are typically understood as derivative of this paradigmatic private-to-state taking, to be used in situations in which it is for some reason preferable to have a private party undertake the public purpose the state is seeking to advance through the use of eminent domain.

The key point is that, even in private-to-private takings, there is always a governmental actor seeking to advance a state objective. That is not true, however, in any number of cases where judges are trying to decide a case between private litigants. In most of those cases, the state courts are not seeking to advance a public purpose, but rather to resolve private disputes as best they can. To say that a state court decision resulting in a loss of property rights (or, perhaps, money) is the equivalent of eminent domain is to ignore this distinction, which Joe Sax made in one of his early takings articles. Thus, when Justice Kennedy gives the example of a state court trying to revolve a boundary dispute between two private parties, it's just not obvious to me how even a clearly erroneous decision on the merits takes the loser's property for public use. It certainly deprives the loser of property that he had before, but not in the service of some state goal. And that difference seems significant for deciding whether to treat this claim under the takings clause or the due process clause. (I don't think I'm being overly formalistic in making this distinction, but I need to think about it some more, and I'm open to being convinced otherwise.) Sure, from the perspective of the owners, both types of actions are similar: they both result in property owners losing property (or money) to which they otherwise would have been entitled, but the state (court's) role and goals are very different in the two sorts of cases. At the end of the day, then, I suppose I am inclined towards Justice Kennedy's due-process approach.

This still leaves me open to the possibility of a narrower category of so-called "judicial" takings, which would be limited to situations in which the state court is -- as in the Stop the Beach Renourishment Case -- adjudicating between the state and a private actor. In such cases, the state court's redefinition of property rights to make room for the state's own action could, if it erroneously disregards established property rights -- have the affect of unlawfully empowering the state to take property for public use without just compensation. Even in these cases, care would need to be taken to avoid finding to be takings situations in which the state court was merely clarifying the law or applying an existing (but broad) principle (like sic utere) to a new factual situation or in light of new knowledge about the harmfulness of longstanding practices. But where the state court is merely adjudicating between private actors -- as it is in most common law property, contract, and torts cases -- the proper rubric seems to me to be Justice Kennedy's due-process analysis.

UPDATE: Proving that there's no idea I can have that Lior Strahilevitz
can't have more clearly and at least five days sooner, here's a link to his
excellent post from a few days ago at the U. Chicago Law Profs blog, which makes many
of the same points, and, in addition, connects the beach renourishment
case up to Kelo v. New London.

Grades and class rank

Folks are talking (Brooks beat me to it) about the article in today' Times on law schools altering their grading curves (sometimes retroactively) to bump students' GPAs, making students look stronger and thus more attractive to employers.

We just altered our curve, although not retroactively (one of my colleagues was part of a retroactive revision at his previous school and said it was a nightmare). We previously had a strict, fairly harsh curve containing both a mean (2.47-2.67 in 1L classes, 2.58-2.88 in upper-level) plus a mandatory distribution at the top end. In fact, our continued adherence last fall to the curve put us against the trend. But no more. Our new system (modeled after several other Florida schools) eliminates the mean, imposes a more-generous high-end distribution, and establishes a bottom-end distribution. Although, for what it is worth, I could have satisfied the new curve in my Civ Pro class simply by bumping a couple of Cs to C+s. The new curve still leaves professors with a range and broad discretion.

Jon Siegel suggests that employers opposed to this sort of grade inflation could fight back by ignoring GPA and focusing on class rank. I agree it would be great if firms would shift their focus. The problem is an (anecdotal) strong resistance in the legal market to do so. Part of the push to change here came because our dean's conversations with people in the hiring market convinced him that GPA was the be-all-end-all and class rank did not matter. As a relatively new, lower-tiered school, firms are interested only in our very top students. But many firms seemed to say that a 3.3 GPA was not high enough for them to look at, even if that person was # 3 in the class.

Is it a federal crime to break Israel's Gaza blockade?

Or pay taxes that end up in Hamas' pocket? Or send a remittance check to a relative in the Gaza strip? SCOTUS's decision in Holder v. Humanitarian Law Project suggests as much. These implications suggest that the real story about the "material support" statute is not its effect on freedom of speech but its extraordinary grant of prosecutorial discretion: By criminalizing all activity that simply has the foreseeable effect of aiding a foreign terrorust organization, the statute absurdly makes the entire population of Gaza and the entire European Union into criminals under U.S. law.

Of course, the European Campaign to End the Siege on Gaza ("ECESG") does not, in theory, coordinate its flotillas to break the Gaza siege with any designated "foreign terrorist organization" ("FTO") like Hamas. But the "material support" statute requires no such coordination or control by the FTO unless the material support in question takes the form of providing "personnel" to an FTO: Section 2339B(h) provides that “[n]o person may be prosecuted under [§2339B] in connection with the term ‘personnel’ unless that person has knowingly provided ... one or more individuals ... to work under that terrorist organization’s direction or control," which the statute defines to exclude "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives" (emphasis added). Chief Justice Roberts relied heavily on this language in declaring that "Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns" (slip opinion at page 30) by "avoid[ing] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups" (id. at page 31). By fairly obvious expressio unius reasoning, the "coordination with/ controlled by" limit is applicable only when the "material support" law is used to target the lending of personnel to an FTO for (among other things) speech-based activities -- picketing, counseling a client, etc. For contributions other than personnel -- say, medical equipment, remittance checks, construction materials, food, etc -- there is no "coordination with/ controlled" by requirement for liability under the statute. Providing a bowl of pasta to a private person that one knows to be a member of an FTO constitutes "material support" to an FTO even if one simply is trying to save that FTO foot soldier from starvation and even if one deplores the FTO's goals, just so long as the government can show that one knew or should have known that the noodles would eventually advance the FTO's goals.

Thus, it is not even a slight stretch of statutory language for some enterprising U.S. Attorney to indict the government of the European Union for providing humanitarian aid to private Gazans. After all, if one helps out Gazans, one provides an indirect benefit to Hamas by saving them the trouble of providing such aid, thereby allowing Hamas to save their resources for rockets to Israel. Such indirect "material support" for Hamas' goals is surely foreseeable: The EU knew or should have known that Hamas' political existence is made easier by Care Packages for Hamas' constituents. That such a prosecution would be crazy as a matter of policy is legally irrelevant, given the sweeping and plain language of the statute.

We are, in sum, dependent entirely on federal prosecutors' assurances that they will exercise common sense in their assessments of proximate cause. The elimination of the traditional requirement of specific intent to aid a crime from the offense of abetting is the real threat to civil liberty posed by the "material support" law. We law profs ought to be publicizing this egregious mutilation of traditional criminal law categories and not hyper-ventilate about some free-speech bogeyman borne of the "cultural magnetism" exercised by the First Amendment (in Fred Schauer's memorable phrase) on the American imagination, a magnetism that leads us Americans to press the First Amendment's boundaries outwards while ignoring the real threat to our liberties that have nothing much to do with speech.

What matters more in this market: student GPA or favorite baseball team?

The opening lines to this N.Y. Times article tell the story: "One day next month every student at Loyola Law School Los Angeles will awake to higher grade point average. But it's not because they are all working harder." We have discussed this issue around my school too, where we have a fairly tough grade range. Does this kind of grade elevation actually help law students in a tough job market? Or, as the article suggests, do employers just look to Above the Law for the real scoop? And what of the law student who, on principle, can't falsely profess loyalty to another baseball team?